The parties have agreed that plaintiff's second, third and
fourth claims (the pendent state claims for negligence,
assault and battery, and false arrest) are barred by New
York's notice of claim provisions and its statute of
limitations. See General Municipal Law §§ 50-e, 50-h and 50-i.

B. SECTION 1983 CLAIMS AGAINST THE COUNTY AND THE POLICE
DEPARTMENT

Cox's § 1983 action is based on (1) alleged violations of his
rights under the Fifth and Fourteenth Amendments due to his
arrest and prosecution, without probable cause, for sodomy in
the first degree and (2) an alleged violation of his rights
under the Fourth Amendment by an unidentified police officer's
use of excessive force during questioning.

In Monell v. New York City Dept. of Social Services,
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court
held that a local government may not be sued under § 1983 under
a theory of respondeat superior. "Instead, it is when the
execution of a government's policy or custom . . . inflicts the
injury that the government as an entity is responsible under §
1983." Id. at 694, 98 S.Ct. at 2037. Moreover, "where the
policy relied upon is not itself unconstitutional, considerably
more proof than [a] single incident will be necessary in every
case to establish both the requisite fault on the part of the
municipality, and the causal connection between the 'policy'
and the constitutional deprivation." City of Oklahoma City v.
Tuttle, 471 U.S. 808, 824, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791
(1985) (plurality opinion).

Plaintiff in this case has stated no facts to support the
bare assertion in his complaint that the County and the Police
Department institutionalized, authorized, tolerated or
approved the alleged misconduct of the police officers named
in this action. He has not presented any evidence tending to
show that the County and/or the Police Department have an
unconstitutional policy or that they have unconstitutionally
applied a proper policy. City of Canton, Ohio v. Harris,
489 U.S. 378, 109 S.Ct. 1197, 1203-04, 103 L.Ed.2d 412 (1989).

Defendant police officers first state that all the
statutorily defined elements of sodomy in the first degree
were clearly present in this case.*fn1 They note that the
statute does not mention any required mens rea. Therefore, they
conclude, they had probable cause to arrest and prosecute Cox.

By defendants' reasoning, however, the complaining witness
in this case, who had been brutally assaulted and repeatedly
raped, could also have been properly arrested and prosecuted
for committing sodomy; she too engaged in deviate sexual
intercourse with another person by reason of compulsion.
Needless to say, such an arrest and prosecution would be both
absurd and against the clear intent and purpose of the
statute. Indeed, New York State Penal Law § 15.15 states: "A
statute defining a crime, unless clearly indicating a
legislative intent to impose strict liability, should be
construed as defining a crime of mental culpability."
Accordingly, defendants' mere tracking of the criminal statute
defining sodomy, while ignoring all exculpatory evidence
regarding mens rea, was not sufficient to establish probable
cause to arrest and prosecute Cox.

The police officers next contend that they are entitled to
summary judgment on the § 1983 claim to the extent it is
grounded in alleged violations of Cox's Fifth and Fourteenth
Amendment rights because under the doctrine of qualified
immunity, they are entitled to immunity from civil suit even if
they lacked probable cause for the arrest and prosecution, so
long as their belief concerning the presence of probable cause
was not patently unreasonable. Malley v. Briggs, 475 U.S. 335,
343, 106 S.Ct. 1092, 1097, 89 L.Ed.2d 271 (1986); Magnotti v.
Kuntz, 918 F.2d 364, 367-68 (2d Cir. 1990); Warren v. Dwyer,
906 F.2d 70, 75 (2d Cir.), cert. denied, ___ U.S. ___, 111
S.Ct. 431, 112 L.Ed.2d 414 (1990). Moreover, "evidence that
might be insufficient to sustain a finding of probable cause .
. . [could] be adequate for the judge to conclude it was
reasonable for [the police officers] to believe [they] had a
good basis for their actions." Magnotti, 918 F.2d at 367; see
Malley, 475 U.S. at 343-45, 106 S.Ct. at 1097-98; Warren v.
Dwyer, 906 F.2d at 75.

Qualified immunity is not only a defense to liability, but
also a "protection against having to defend a lawsuit."
Magnotti, 918 F.2d at 367. Furthermore, a judge can determine
the applicability of qualified immunity on a motion for summary
judgment based on the "objective legal reasonableness" of
government officials' acts assessed in terms of the legal rules
clearly established at the time those acts took place. Harlow
v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39,
73 L.Ed.2d 396 (1981); Washington Square Post No. 1212 American
Legion v. Maduro, 907 F.2d 1288, 1291 (2d Cir. 1990). In
Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d
523 (1987), Justice Scalia explained that the trial court must
not only determine whether the legal rule was clearly
established, but also whether the particular acts taken by the
government officials seeking immnunity would clearly violate
existing law. Id. at 640, 107 S.Ct. at 3039.

In the instant case, Cox was arrested along with Christian
in the very room in which Christian assaulted and raped the
complaining witness; Cox admitted to participating in
non-consensual deviate sexual acts with the complaining
witness; and the arrest occurred before the complaining
witness completed her written statement. Under these
circumstances, the Court holds that it was not objectively
unreasonable for the police officers to believe that they had
probable cause to arrest Cox; consequently, they are entitled
to qualified immunity for the arrest.

Within a few hours of Cox's arrest, both he and the
complaining witness submitted written statements which clearly
indicate that Cox's participation in oral sodomy with the
complaining witness was involuntary and entirely due to
Christian's use of force and threats. There was no evidence to
the contrary. Nevertheless, defendants proceeded to arraign
and indict Cox on charges of sodomy in the first degree. As
stated above, the Suffolk County District Court dismissed the
indictment, finding that the evidence submitted to the Grand
Jury clearly showed that Cox, as an unwilling participant in
the sodomy, lacked the mens rea to commit sodomy in the first
degree.

Viewing the facts in the light most favorable to the
plaintiff, as the Court must under a motion for summary
judgment based on qualified immunity, Waldrop v. Evans,
871 F.2d 1030, 1035 (11th Cir. 1989), the Court holds that it was
objectively unreasonable for the police officers to believe
that they had probable cause to prosecute Cox. Consequently,
they are not entitled to qualified immunity for their acts in
prosecuting Cox after they received the complaining witness'
written statement. See Torres Ramirez v. Bermudez Garcia,
898 F.2d 224, 228 (1st Cir. 1990).

Defendants' other arguments regarding the § 1983 claim based
on malicious prosecution are also to no avail. They note that a
district attorney is entitled to absolute immunity in
prosecuting a felony charge, Imbler v. Pachtman, 424 U.S. 409,
431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976) and that Suffolk
County would not be liable under § 1983 for any wrongdoing by a
district attorney in grand jury proceedings. Baez v. Hennessy,
853 F.2d 73, 77 (2d Cir. 1988) cert. denied, 488 U.S. 1014, 109
S.Ct. 805, 102 L.Ed.2d 796 (1989). These statements are true,
but they are also irrelevant; none of the defendants in this
case is a district attorney and the County does not and cannot
claim that it has immunity for the actions of its police
officers. Nor will the role of the district attorney
necessarily shield police officers who act as complaining
witnesses from liability for malicious prosecution. White v.
Frank, 855 F.2d 956, 962 (2d Cir. 1988).

In addition, defendants state that grand jury testimony is
never given under color of law, Briscoe v. LaHue, 460 U.S. 325,
103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), and that such testimony
is, in any event, the subject of absolute immunity. San Filippo
v. U.S. Trust Co. of New York, Inc., 737 F.2d 246, 256 (2d Cir.
1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d
797 (1985). However, they fail to recognize that Briscoe is
limited to civilian witnesses, Briscoe, 460 U.S. at 329-330,
103 S.Ct. at 1112-1113; San Filippo, 737 F.2d at 256, and that
absolute immunity for grand jury testimony does not apply to a
complaining witness. White, 855 F.2d at 961.

Finally, defendants argue that Cox's § 1983 claim, to the
extent it is based on malicious prosecution, is barred because
his indictment by the Grand Jury on the charge of sodomy in the
first degree is prima facie evidence of probable cause. White,
855 F.2d at 961; Colon v. City of New York, 60 N.Y.2d 78, 468
N YS.2d 453,
455, 455 N.E.2d 1248, 1250, rearg. denied, 61 N.Y.2d 670, 472
N YS.2d 1028, 460 N.E.2d 232 (1983). However, both White and
Colon explain that a plaintiff can still prove a lack of
probable cause if he can show that "the defendant
misrepresented, withheld or falsified evidence." White, 855
F.2d at 962; see Colon, 468 N.Y.S.2d at 455-56, 455 N.E.2d at
1250-51.

At this point in the litigation, Cox has presented no
evidence of any such misconduct on the part of defendants.
Nevertheless, since plaintiff's complaint adequately alleges
the commission of acts that violated clearly established law,
he is entitled to attempt to establish defendants' misconduct
through discovery. See Mitchell v. Forsyth, 472 U.S. 511, 526,
105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). Accordingly,
defendants motion for summary judgment as to that portion of
the § 1983 action which is based on malicious prosecution is
denied, with leave granted to replead after the completion of
discovery.

c. Use of Excessive Force

The use of excessive force during an arrest, an
investigatory stop, or any other seizure of a free citizen
violates that person's Fourth Amendment rights and is
actionable under 42 U.S.C. § 1983. Graham v. Connor,
490 U.S. 386, 388, 109 S.Ct. 1865, 1867, 104 L.Ed.2d 443 (1989). The
standard is objective: were the officers' actions "'objectively
reasonable' in light of the facts and circumstances confronting
them." Id. at 397, 109 S.Ct. at 1872.

Cox's affidavit states that during questioning at the police
station he was kicked without provocation by an unnamed
plainclothes officer. Even if this alleged use of excessive
force was random and unauthorized, it would still be a
violation of substantive due process, and therefore if the
plainclothes officer can be identified, Cox would be able to
maintain his § 1983 action against him. Robison, 821 F.2d at
924-25; see Gilmere v. City of Atlanta, Ga., 774 F.2d 1495,
1500 (11th Cir. 1985) (en banc), cert. denied, 476 U.S. 1115,
106 S.Ct. 1970, 90 L.Ed.2d 654 (1986); Massop v. Coughlin,
770 F.2d 299, 301 (2d Cir. 1985). However, defendant police
officers are not alleged to have committed or cooperated in
that act and therefore they cannot be liable for it.
Accordingly, defendants' motion for summary judgment as to that
portion of the § 1983 action which is based on the use of
excessive force is granted, with leave granted to plaintiff to
replead after the completion of discovery.

D. STATE CLAIM FOR MALICIOUS PROSECUTION

For the reasons discussed above, this Court denies
defendants' motion for summary judgment as to the pendent
state claim for malicious prosecution. Leave is granted to
replead after the completion of discovery.

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